Full Court Reference a D D R E S S by The

FULL COURT REFERENCE

A D D R E S S

THE HONORABLE

MR. JUSTICE TASSADUQ HUSSAIN JILLANI CHIEF JUSTICE OF PAKISTAN

ON THE EVE OF RETIREMENT OF MR. JUSTICE KHILJI ARIF HUSSAIN

11.04.2014 2

My Brother Judges of the Supreme Court, Mr. Kamran Murtaza, President of the Supreme Court Bar Association Mr. Ramzan Chaudhry, Vice Chairman of the Pakistan Bar Council Mr. Salman Aslam Butt, Attorney General for Pakistan

Ladies & Gentlemen!

We have assembled here to pay homage to our illustrious colleague Hon’ble Mr. Justice Khilji Arif Hussain on the eve of his retirement as a Judge of this Court. I got to know him when the former Chief Justice of Pakistan made me Chairman of the A.D.R. Committee comprising of four members, one from each High Court and Justice Khilji was nominated by the Chief Justice of High Court of Sindh. He is a staunch believer in ADR which requires a set of skills, understanding of law, persuasive ability, temperament for mediation and strong credibility. He richly possesses these skills and I always found those skills in the way he interacted socially, in court conduct, in his judgments and in his approach towards life. As a Judge of the Supreme Court he harnessed his vast expertise and firm grasp of the law to bring forth a level of unparalleled wisdom. He is one of those rare individuals whose character is already so innately in tune with his characteristics as a Judge that he need not make any conscious effort to split his decisions. He seamlessly combines his innate skills towards dispute resolution with his honesty, humanism and compassion. 3

As can be seen from his legal opinions, judgments and general demeanor as a Judge, throughout the course of his career, Justice Arif Khilji, has devoted his prudent insight, legal acumen and insightful mind to the development of the rule of law in our country. His judgments have reiterated the importance of several constitutional principles of the utmost value to the judiciary such as that of the trichotomy of powers and the independence of the judiciary. In PLD 2013 Supreme Court 279, Reference by the President of Pakistan under Article 186, Justice Khilji elaborated on another important principle--- the principle of the interpretation of statutes wherein he stated: “While interpreting a provision of the Constitution, great caution has to be taken by the Court, as the Constitution is Supreme Law, which creates the Legislature itself, which makes ordinary law and statutes with respect to which canons of statutory interpretation have been formulated by the Courts.” Justice Khilji’s legacy in judging marked impact on our jurisprudence and will serve to remind us, even as he progresses on to another phase of his life and leaves these walls behind, that as judges, our primary duty lies in preserving and promoting the rights embedded within the Constitution. As our country faces a multitude of battles; against terrorism; against sectarian violence and ethnic cleansing of minorities and on weakened rights for women and children, it is our duty, as a pillar of this State, to hold fast to belief in the seminal values of the rule of law, of human dignity, of tolerance and of compassion. 4

It is not a simple task to reduce to but a few pages the renewed purpose and advancement that Justice Khilji infused into his vocation and that he worked so arduously towards throughout his legal career to achieve. However, I must add that we will be reminded of his work time and time again through the words that lay immortalized in the judgments and law journals. These words will continue to be used to interpret the law and dispense justice. And most importantly, your efforts and your unmatchable wisdom will always be there regardless of your physical presence behind these walls. Besides his jurisprudential depth and vision, he is endowed with many personal virtues which have endeared him amongst his peers and friends. His ready wit, warmth as a friend and above all his innate humility have always made him a popular companion. Hon’ble Members of the legal fraternity! Such occasions also remind us of our common struggle for dispensation of justice under the rule of law. The Constitution makers wanted to implement social, economic and political justice for which vision has been embedded in the Constitution through Fundamental Rights and the principles of policy. These signposts are the basis of all legislative and executive actions. To ensure that these goals are pursued by each organ of the State; that no organ acts beyond the role assigned to it under the Constitution and the law, as also to protect the people from arbitrary rule, the judiciary has been entrusted with the sacred task to arbiter between the State and individual, between the individuals inter se, and to issue appropriate directions, where the rights or the laws are being violated. The constitutional pledge of independence of judiciary and 5

the constitutional command that all State institutions shall comply with the orders passed by the Supreme Court are all means towards the ultimate goal of dispensing said social, economic and political justice. (Article 189) The Constitution makers in the very Preamble pledged that, “the independence of the judiciary shall be fully, secured”. Though it is the function of each organ to ensure enforcement of the rule of law but it is the judiciary which has ultimately to declare what the law is through its power of judicial review. As aptly remarked by an old Sage:- “The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment……..”1 (Alexander Hamilton) We should always remember that the enforcement of rule of law is an unending struggle. Constant vigilance as goes an old saying is the price of liberty. Trees which we plant, which we nurture with our toil, our blood and our sweat can be uprooted with one stroke of axe. We must never relax in our constitutional resolve to protect the rule of law. All of us, the Bench and the Bar, the Government and all institutions must protect democracy. This

1 ‘The Federalist Paper No. 78—Alexander Hamilton 6

protective role is the most sacred duty of all courts and the Supreme Court in particular. We have to protect the constitutional values of democracy, of religious tolerance, of human dignity and providing inexpensive and expeditious justice. Remember always that “A moment of justice delivered is far sacred than thousands nights of worship” so said by Prophet Muhammad (Peace be upon him). We are passing through difficult times, facing the menace of terrorism and confronting an existential crisis. While fighting terrorism and protecting democracy, we need to strike a proper balance between the conflicting values and principles i.e. the value of security of the State and individual rights. Such rights cannot justify undermining the national security. There is an element of nihilism in the violence that we see. “A constitution is not a prescription for suicide and civil rights are not altar for national destruction.”2 Fundamental rights exist only in a State where the rule of law under the Constitution reigns supreme. The Court in its endeavor to strike a balance between the conflicting values often attracts criticism from both sides. Those standing for human rights may contend that the court gives too much protection to security and ignores human rights; those who speak of security concerns may allege that the Court is tilted towards human rights rather than security. These comments should not deter us to uphold the rule of law and the canons of democracy. The occasions of bidding farewells on attaining the age of superannuation carry a strong message: that the robs we don, the offices we

2 Terminiello v. City of Chicago, 337 U.S. 1 (1949) 7

hold and the powers we wield are all passing graces and what remains is one’s legacy: of virtues or vices, of good deeds or acts not done, of achieving cherished goals or of roads not taken, of fond memories or of unkind words. Mirza Ghalib epitomizes this ultimate reality in a verse which I always found to be words of wisdom:-

As I part with these words, let me add, my dear and honorable brother, that the robs you wore may not be part of you from tomorrow onwards but you would remain part of us and would remain in our thoughts and in our memories. You leave behind a trailing cloud of dignity, honor and fond memories. We wish you prosperity and happiness in the years to come. Thank you.

REPLY BY

MR. JUSTICE KHILJI ARIF HUSSAIN

FULL COURT REFERENCE HELD ON 11.04.2014

ON THE EVE OF HIS LORDSHIP’S RETIREMENT 3

Hon’ble Chief Justice of Pakistan, Mr. Justice Tassaduq Hussain Jillani; Hon’ble Senior Pusine Judge Mr. Justice Nasir-ul-Mulk; Hon’ble Judges of the Supreme Court of Pakistan; Learned Attorney General for Pakistan Mr. Salman Butt; Learned Vice Chairman, Pakistan Bar Council –Muhammad Ramzan Chaudhry; Learned President, Supreme Court Bar Association- Mr. Kamran Murtaza Learned Advocate General of the Provinces & Law Officers; Distinguished Members of the Bar; Ladies and Gentlemen!

Assalm-o-Alaikum;

First of all, I would like to express my deepest gratitude for the honour given to me here on the eve of my retirement, from the Bench by holding this Full Court Reference. I am privileged and humbled by the kind observations made by Hon’ble Chief Justice and the learned speakers who have addressed the Court about my humble contribution, to the cause of justice while at the Bench and the Bar. 4

Ladies & Gentlemen! As you all know and as it has been said so, I have spent about 40 years in this fraternity; I started my career as a lawyer in the ‘Verandas’ of District Courts Karachi and the journey continued till I reached from ‘Verandas’ to the ‘Chamber’ of the High Court and then to this August Court. Yes, there is much difference between being a lawyer and being a Judge. These are crossroads of legal life; being a lawyer you just have to plead your own case and you are a ‘judgment seeker’, but being a ‘Judge’, you have to decide between the two ‘justly’, and you become a ‘judgment giver’;

Ladies and Gentlemen! The Judicial process as we understand, it would be impossible unless the truth were elicited by two opposing sides, putting before the Court different aspect of the truth. There is nothing more difficult in this World than to discover 5

the truth because truth is not something simple something which is apparent. The duty of an Advocate is not to convert the Judge to his point of view; his duty is to see that the Judge has understood and appreciated his side of the case and his arguments. By the same token it is not the duty of a Judge to convert the lawyer because the lawyer is paid not to be converted.

Ladies & Gentlemen!

Dispensing justice is a sacred trust and divine trait; Almighty Allah has bestowed His this divine attribute upon us, the human being. In Islam it is placed on high pedestal; Allah Almighty has ordained in Quran and I quote: “O Dawood! We have made you a vicegerent in the earth so rule among the people with justice and do not follow your own desires lest they mislead you from the Way of Allah. As for those 6

who go astray from the Way of Allah, they shall surely have a severe punishment because of forgetting the Day of Reckoning.”

for affording me the اﷲنوٰ Definitely, I bow my head to opportunity to have discharged duty of dispensing justice to the best of my limited capacities and to the satisfaction of my conscience; all prayers to Allah Almighty because I am laying off this ‘ornament of grace’ with honour. I would also like to say that whatever I have done was a part of my duty as a Judge. I have always tried to contribute towards furthering the cause of justice. Indeed I would like to share that my father who was also Judicial Officer has always been an inspirational figure to me advised me, to just believe in one thing –-- “Do your duties sincerely and be not conscious about the outcome”. He was an upright and humble person -----my mentor----- and motivated me to switch my career from sciences to law. I was also fortunate to have excellent teachers and colleagues firstly at the Bar and then at the Bench whose valuable guidance has made me what I am today by the Grace of Allah Almighty.

Ladies and Gentlemen! Today, Supreme Court is an inevitable institution for a common man; independent in action and free in thoughts showing strength excellence and courage under most demanding circumstances. It has been through the most difficult and turbulent periods in the history of Pakistan and ultimately acquired the reputation of protector of the Constitution, democracy, rule of law and guardian of 7

fundamental rights of the people of Pakistan. This judiciary, no doubt, is the result of a continuous struggle of our decorated fraternity, both the Bench and the Bar. Through their incredible contribution, not just for the judicial system but for this nation. Though, I am parting with this August institution and being detached from my family of the Bench and Bar I must say I feel privileged proud and blessed to be part of this journey. I am also proud to be part of the Court that has announced the most celebrated judgment commonly known as Sindh High Court Bar Association case (PLD 2009 SC 879) and also take pride to be in the Bench which has decided the NRO case (PLD 2010 SC 265), Dual Nationality Case (PLD 2012 SC 1089), Anita Turab’s case (PLD 2013 SC 195), Local Govts. Delimitation Case, Worker Party’s case, Law & Order situation in Balochistan and Karachi and Missing Person Case. Although these judgments have been welcomed by one part of society yet there are some critics too. Nevertheless, the end result has been the essence of involvement of this Court in matters pertaining to the people of Pakistan, with pure intention to do justice, both curative and distributive. Let me assure you that aims & objects of every judgment of this Court are to enforce the Constitution and to protect the fundamental rights of the people of Pakistan. An effective Judicial System requires not only that just results be reached but they be reached swiftly. The currently available infrastructure of Courts in Pakistan is not adequate to settle the growing litigation due to increase in population, awareness about their rights, denial of rights by the Executive. The time has come, when we should place ADR, 8

well tested mechanism, to offload some cases from the Court’s docket. Ladies and Gentleman! On this occasion, I wish to pay my special thanks and gratitude to the Hon’ble Chief Justice of Pakistan Mr. Justice Tassaduq Hussain Jillani and my colleague Judges, for their inspirational support while I was at the Bench. I am also thankful for their generosity, which enabled me to cherish many useful experiences.

The most rewarding part of my career is not this office or that office, but the people who made part of this journey. The fact is that I have had the exceptional privilege of working with exceptional people. Apart from the Hon’ble Judges sitting here, like former Chief Justice Iftikhar Muhammad Chaudhry, Justice Javed Iqbal, Justice Khalil-ur-Rehman Ramdy, Justice Sardar Muhammad Raza Khan, Justice Mian Shakirullah Jan, Justice Raja Fayyaz Ahmed, Justice Ch. Ijaz Ahmed, Justice Sair Ali, Justice M.A. Shahid Siddique, Mr. Justice Rehmat Hussain Jaffri, Justice Tariq Parvez, Mr. Justice Ghulam Rabbani and my dearest friend late Justice Sabihuddin Ahmed. I am also grateful to the members of the Bar and legal fraternity for their support, cooperation and assistance on intricate legal issues. Well, now with heartfelt apologies, I here today humbly seek forgiveness, if any body whosoever has been hurt or grieved by any of my unintentional act. 9

And last but not the least, here comes my better-half ‘Khurshid’ and today I am going to return her ‘the lost half’ of her life. I must say she has been a supportive hand throughout my career, not to mention the upbringing of my children. I cannot thank enough to her, my children and now my grandchildren particularly Rumessa, Eeman, Manuche, Naail and Alizah, for their tolerance and understanding because they have had to bear my odd working hours and at times ‘distant lost look’. No doubt, they are always supportive and were at my back throughout my judicial career. My thanks are also due to my personal staff Mr. Irshad, Naseer, Abid, Umer and Niaz Sb. for their facilitation and assistance. I also express my gratitude to all the staff and officers of the Supreme Court for their support in my meager contribution to this highly respectable institution.

Ladies and Gentlemen! Retirement is a fact of life. Each one of us is to go from his office. No one is irreplaceable in this world. Time has come for me to part with the fraternity of illustrious brothers of the Bench and distinguished members of the Bar. I must quote Shakespeare here, who said “All is well that ends well”. Probably, he was alluding that partings are not without a tinge of sweet and sour memories, particularly where the association has been long and extensive. But, I would say it has been very pleasant, very cordial, memorable and indeed very brief but a rollercoaster ride, with all that and more. I bid you all an affectionate good bye. I pray to Allah Almighty that He may give us guidance and strength so that we can safeguard the integrity, solidarity, sovereignty and the glory of Pakistan. Amin. Before parting, I propose to conclude by quoting Benjamin N. Cardozo for one of his memorable address to members of Bar:- “The future, Gentlemen, is yours. We have been called upon to do our part in an ageless process. Long-after, I am dead and gone and little in it is forgotten. You will be here to do your share and carry the torch forward. I know that the flame will burn brighter while the torch is in your keeping.”

Thank you very much and Khuda Hafiz. Pakistan Paindabad.